Harris v. Fiore , 70 Wash. 2d 357 ( 1967 )

Ott, J. —

At approximately 5:45 p.m. on January 23, 1962, it was “dark and very misty” at the approach to Aurora Avenue from North 49th Street in Seattle. Aurora Avenue is an arterial 6-lane highway. The traffic lanes are divided into three northbound and three southbound lanes. Drivers approaching Aurora Avenue from the east on North 49th Street must turn right on to Aurora Avenue.

Mike F. Fiore had stopped at the stop sign on North 49th Street before entering the northbound curb lane and waited until the traffic in the curb lane had cleared. Seeing no signal light from any vehicles in the second or third lane indicating an intention to enter the curb lane, he drove onto Aurora Avenue. His automobile had traveled two or three car lengths from the entrance to Aurora Avenue when it was struck on the left side by the automobile being driven by Loretta F. Harris, who was attempting to change lanes from the center to the curb lane.

Loretta Harris and her husband commenced this action against Mike F. Fiore and his wife to recover damages resulting from the accident, contending at the trial that Loretta Harris had signaled her intention to change lanes and that Mr. Fiore was negligent in failing to yield the right of way. Mr. Fiore denied he was negligent and asserted that Mrs. Harris was negligent in failing to signal her intention to change lanes from the center to the curb lane.

The jury returned a verdict for the defendants Fiore. Plaintiffs moved for a new trial contending that the trial court erred in instructing the jury on the law relating to contributory negligence and deception. The trial court held it had erred in this regard and granted plaintiffs’ motion for a new trial. From this order granting a new trial, defendants have appealed.

Did the trial court err in instructing the jury on the issue of contributory negligence? RCW 46.60.070 (repealed in 1965) provided in part:

(1) Every vehicle shall be operated as nearly as practical entirely within a single lane and shall not be moved from such lane until the operator thereof has first ascertained that such movement can be made with safety;

RCW 46.60.120 (repealed in 1965) provided in part:

(b) A signal of intention to turn right or left when required shall be given continuously during not less than the last one hundred feet traveled by the vehicle before turning or during a period of time not less than that time required to traverse a distance in feet equal to five times the maximum speed in miles per hour allowed by law during the ‘approach to the point of turning or stopping.

These statutory enactments require that one traveling upon a multiple-lane arterial highway must timely indicate an intention to change lanes. When a driver violates a statutory mandate, such violation is negligence per se. Daley v. Stephens, 64 Wn.2d 806, 394 P.2d 801 (1964), and cases cited. If such negligence was a proximate cause of the accident, the such injured party is thereby barred in an action to recover damages for his injuries even though the other driver is likewise negligent. Sinclair v. Record Press, Inc., 52 Wn.2d 111, 323 P.2d 660 (1958).

The evidence as it related to the negligence of either driver was conflicting. Under these facts, the court did not err in submitting the issue of Mrs. Harris’s contributory negligence to the jury.

Did the trial court err in giving the following instruction on the issue of deception:

I instruct you that the driver of an automobile on an arterial highway is afforded the right of way over vehicles entering the arterial highway over that portion of the highway to which the driver thus favored is entitled to proceed. I further instruct you that the right of way afforded to a driver on an arterial highway is not absolute since the duty to avoid accidents rests upon all drivers. I further instruct you that where the favored driver so wrongfully and negligently operated his automobile as to create a deception tantamount to an entrapment, that is to say, that the deception is of such a marked character as to lure a reasonably prudent driver into the illusion that he has a fair margin of safety in entering upon the arterial highway and clearing the intersection, then a driver entering the arterial highway, so deceived, is not negligent. Instruction No. 14.

We have held in DeKoning v. Williams, 47 Wn.2d 139, 286 P.2d 694 (1955), that each party is entitled to have his theories of the case presented to the jury. Lidel v. Kelly, 52 Wn.2d 238, 324 P.2d 817 (1958); Carraway v. Johnson, 63 Wn.2d 212, 386 P.2d 420 (1963). If a given set of facts supports two or more theories of law, the court must instruct on all the theories to which the facts pertain.

The appellant’s contention was that he did yield the right of way; that there were no automobiles approaching in the curb lane; that he saw headlights approaching in the center lane; and that none of the drivers traveling in the center lane were indicating any intention of changing lanes at the time he entered the curb lane.

Upon these facts, the jury could have found that the appellant acted as a reasonably prudent person and was deceived into believing that he could enter the highway with a fair margin of safety. In Bockstruck v. Jones, 60 Wn.2d 679, 682, 374 P.2d 996 (1962), we held that:

A disfavored driver, who properly looks to the right, can be deceived by a clear stretch of road as well as by the deceptive manner in which a favored driver operates his vehicle. For a comparable case see Roberts v. Leahy (1950), 35 Wn. (2d) 648, 214 P.(2d) 673. (Italics ours.)

In the cited case, we held that the instruction on deception was properly given. In the instant case, there is evidence not only of a clear stretch of road at the time the appellant entered the curb lane of the arterial highway, but also of the deceptive manner in which respondent operated her vehicle.

The respondent relies upon Ward v. Zeugner, 64 Wn.2d 570, 392 P.2d 811 (1964), in which case this court held that the instruction on deception was improperly given. The facts in the Ward case show that the favored driver was proceeding in the lane in which she had a right of way and that the disfavored driver turned in front of the favored driver, causing the accident. The disfavored driver “neither testified or claimed she saw the favored driver’s vehicle” prior to the collision. The facts in the Ward case, supra, present a typical case of a disfavored driver not seeing that which was present to be seen. Hence, the disfavored driver could not have been deceived by that which she did not see.

The evidence in the instant case vastly differs from that in the cited case. The disfavored driver, Mr. Fiore, saw everything which was there to be seen. There was no vehicle approaching in the curb lane into which he was about to enter. He saw the headlights of all the vehicles approaching in the center lane, in which lane Mrs. Harris concedes she was traveling prior to the collision. None of the drivers traveling in the center lane were indicating an intention to change to the curb lane. Had Mr. Fiore attempted to enter the center lane, the rule announced in the Ward case would apply. The evidence is undisputed that Mr. Fiore intended to enter the curb lane. The deception occurred in Mrs. Harris’s failure to indicate her intention to change her lane of travel from the center to the curb lane.

We conclude, therefore, that the rule announced in the Ward case is not appropos to the facts in the case at bar and that the instruction on deception under the facts in this case was properly given.

For the reasons stated, the trial court erred in granting respondents a new trial and the cause is reversed with instructions to enter judgment in accordance with the verdict of the jury.

Hunter, J., and Barnett, J. Pro Tern-., concur.